Kim Davis Sent to Jail for Refusing to Deny Her Faith. Is this the Twilight of Religious Liberty?

Kim Davis never thought that any court would pretend to be able to change the truth concerning the nature of marriage. Today, the Clerk of Court for Rowan County, Kentucky, was found in contempt of court by U.S. District Judge David Bunning and ordered to jail. Her crime? She refused to issue a marriage license to a same-sex couple.

Davis served as a deputy clerk for 27 years and was elected as the county clerk last year. Part of her job involves the issuance of marriage licenses. She understood that obligation within the context of the centuries-old, cross-cultural and universally accepted fact that marriage is between one man and one woman. Almost 75% of the citizens of Kentucky amended the State Constitution to clarify that fact.

In June of 2015, five justices of the United States Supreme Court manufactured out of whole cloth a new “right” for two men or two women to marry in what I have referred to as an act of judicial alchemy. They claimed to have found this “right” in the 14th amendment to the United States Constitution, apparently next to the “right” to take the life of children in the womb through procured abortion.

This presented Davis with a serious moral, religious and legal crisis because she is a Christian, a member of the Apostolic Church. Issuing a marriage license with her name on it to a same-sex couple violated her deeply-held religious convictions. When a federal Court ordered her to do it anyway, she refused. Liberty Counsel is representing her and the case has received extensive national coverage.

In a statement, Davis explained, “I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience.”

She continued, “It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience. I have no animosity toward anyone and harbor no ill will.” This includes homosexual people, she stressed. “To me this has never been a gay or lesbian issue. It is about marriage and God’s Word. It is a matter of religious liberty, which is protected under the First Amendment, the Kentucky Constitution, and in the Kentucky Religious Freedom Restoration Act.”

Focusing the Nation

Kim Davis and others like her have focused the nation on the very meaning of religious freedom. There is a tsunami of activism seeking to compel faithful Christians to deny their deeply-held religious convictions about the nature of marriage once they step outside of their church buildings. The United States is moving steadily away from its foundational commitment to religious liberty as a fundamental right.

The movement began in the business arena, when activists for what I call “homosexual equivalency” strategically used public accommodation arguments against Christians who declined to provide products or services for same-sex weddings. Most courts ruled that the interests of the same-sex couples, not those of the Christian businesspeople, had to be accommodated.

With the Supreme Court’s decision, the movement has spread to the legal arena. A recent advisory opinion from the Ohio Supreme Court might have the effect of excluding faithful Christians from serving on the judicial bench in that state.

Kim Davis is merely asking that her conscience be accommodated by removing her name from any marriage license, not just those for same-sex couples. No one disputes the sincerity and depth of her religious belief. The question is whether her belief can — and should — be accommodated. To affix her name on the license gives the impression that she authorizes and approves of same-sex marriage. That license, with her name on it, would go into the permanent archives.

In a public statement she noted that “our history is filled with accommodations for people’s religious freedom and conscience” and further explained, “I want to continue to perform my duties, but I also am requesting what our Founders envisioned — that conscience and religious freedom would be protected. That is all I am asking.”

The Believer’s Constitutional Rights

Such an accommodation is consistent with the Constitutional protection of the free exercise of religion found in the First Amendment to the Bill of Rights. There are many good ways to accommodate people with strong religious convictions in cases like Davis’s. There’s no need to cite them for contempt of court and send them to jail.

America was founded on religious freedom and has always respected conscience rights. The Supreme Court has stated repeatedly that people do not lose their constitutional rights when they become public servants. The Supreme Court did not set aside fundamental liberties in Obergefell. Nothing in the decision overturns the First Amendment.

Some contend that that because Kim Davis works for “the government” she must comply by issuing the license with her name on it. In other words, she loses her right to religious liberty because she has a public position. This fails to consider the crucial fact that when she was elected to her post as the Rowan County Clerk, marriage under Kentucky law was solely between one man and one woman. That was the law she swore to uphold. Then the five oracles of the Supreme Court issued their edict in Obergefell v Hodges, with no basis in the Constitution, past precedent, common sense or the Natural Law.

The treatment of Kim Davis raises some very serious issues. Will faithful Christians soon be excluded from certain professions? Will fidelity to the Bible, the Natural Moral Law and the unbroken Christian tradition exclude Christians from government service? How is that compatible with what was intended by this country’s founders when they gave us the First Amendment to the Bill of Rights?

Prior to what is called the Edict of Milan in 313 A.D., the Christians of the first three centuries had to refrain from serving in public office. That was because to participate in the government of ancient Rome would require that they apostatize, or abandon the faith — to reject the Lord Jesus. Is that the choice that lies ahead for American Christians? Are we entering the twilight of religious liberty in America?

Author

Deacon Keith Fournier is Founder and Chairman of the Common Good Foundation and Common Good Alliance, which are dedicated to the conversion of culture through four pillars of participation; life, family, freedom and solidarity. He is the Editor-in-Chief at Catholic Online. He is a constitutional lawyer who appeared in four cases before the United States Supreme Court on Pro-Life, Religious Freedom and Pro-family issues. He is the author of eight books on Christian living, Christian family and public policy issues. Deacon Fournier is a member of the Clergy of the Diocese of Richmond, Virginia. He holds his BA in theology and philosophy from the Franciscan University of Steubenville, his Masters Degree in Marriage and Family Theology from the John Paul II Institute of the Lateran University (MTS), his Juris Doctor Law Degree Law (JD) from the University of Pittsburgh School of Law and is a PhD candidate in Moral Theology at the Catholic University.

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